Sen Gillibrand’s MilJus reforms ended up on the cutting room floor of the new NDAA compromise worked out last night. Here is The Hill’s report. The bill does contain major MilJus changes, including elimination of the CA’s power to overturn members’ verdicts and mandadtory DDs for certain Art. 120 convictions.
More on the sexual assault cases against two former Navy football players (probably smar links PC has below). Navy Times here and Capital Gazette here.
A mini mutiny over poor leadership leads to courts martial in the UK army. Telegraph report here.
It is not on the website yet, but a tipster tells us that the Navy JAG is getting on the sexual assault based reform of military justice bandwagon. ALNAV 080/13 issues an amendment to the JAGMAN that requires Art. 32 investigating officers in sexual assault cases be a judge advocate. It also requires that in all other cases the default IO should be a judge advocate and a line officer be used in only exceptional cases.
More coverage from UPI, here, and the Killeen Daily Herald, here, on the alleged prostitution ring run by a unit sexual assault prevention officer at Ft. Hood and the court-martial of a Master Sergeant client of the organization.
More on Fat Leonard-gate from WaPo here.
Over at 31(b)log, Major Rebecca Kliem writes about The Long Goodbye for Good Military Character (link to post):
Having an outstanding military record has long been an advantage when charged with a crime in the military justice system because it adds evidence of good military character to the defense counsel’s arsenal of weapons that can create reasonable doubt. Those days may soon come to a close as pending legislation affecting evidentiary rules finally reaches the well of the courtroom.
Some members of Congress apparently think that there’s something improper about the so-called “good soldier defense.” Major Kliem’s post digs deep into the military law of good military character, and she discusses the legislative proposal that would restrict that kind of evidence.
But something comes to mind. It is thoroughly settled that any accused is entitled to present evidence of his own good character. In fact:
It is not necessary to cite authorities to show that, in criminal prosecutions, the accused will be allowed to call witnesses to show that his character was such as would make it unlikely that he would be guilty of the particular crime with which he is charged. . . . It [is] not intended to give weight to the defendant’s personal testimony in the case, but to establish a general character inconsistent with guilt of the crime with which he st[ands] charged; and the evidence [is] admissible, whether or not the defendant himself testifie[s].
Edgington v. United States, 164 U.S. 361, 363-64 (1896).
In this politically charged environment, the proposal to prevent a service member from using good reputation in the service as evidence of good character may well become law. But I believe that if it does, then it will not stay law for long.
An alleged prostitution ring leads to the court-martial of an alleged client, but no charges yet against the ringleader. Killeen Daily Herald report here.
Sens. McCaskill and Ayotte pen article supporting their military sexual assault amendments to the NDAA and panning other proposed reforms to strip all CA power in sexual ssault and serious felony cases. USA Today article here. One provision I had missed is the mandatory DD for sexual assault. This abandons the indeterminate sentencng scheme that has been a hallmark of the UCMJ. I wonder if Congress as given thought to what that means for the system as a whole. Does it implicate Apprendi concerns? I’ll need to give that some thought.
And this National National Journal article questions whether any of the reforms will make it through the process fven the current broader budget battle.
When is an attorney taking pictures of their own client newsworthy? At Gitmo. Miami Herald cverage here.
“Pretty’ soldier controversy results in removal of one officer and internal TRADOC investigation. Army Times coverage here.
A former Army pilot was sentenced to close to two years in jail for stealing more than $1 million in spare parts from the government during deployments to Iraq and Afghanistan. Watertow Daily Times reports here on the sentencing in Fayetteville.
Air Force Times reports here that more than 100 retired generals have signed on to voice opposition to Senator Kirsten Gillibrand’s. As the article notes, there are two competing proposals from Democratic Senators:
The 2013 Military Justice Improvement
Act, authored by Sen. Kirsten Gillibrand, D-N.Y., would move the decision whether to prosecute any crime punishable by one year or more to military attorneys. Commanders would still be responsible for deciding whether to send to court-martial 37 offenses, such as disobeying orders or being absent without leave.
The bill is the more controversial of two that propose changes to the Uniform Code of Military Justice aimed at reducing sexual assault across the services.
Sen. Claire McCaskill, D-Mo., has proposed a bill that would leave the power to prosecute crimes within the chain of command but strip commanders of the authority to change or dismiss a court-martial verdict except when the offenses are minor. It would also require a convening authority to hear from a victim before modifying a sentence — and provide a written explanation for any changes.
. Bahrain says it captured two suspected terrorist plotters who were previously held at Gitmo, Miami Herald report here. This is only the latest example of former Gitmo residents turning to the cause orb terrorism, see e.g. this Wiki page (which I can’t vouch forbthe accuracy).
From this Huffington Post editorial by Sen. Claire McCaskill:
By that measurement, an alternative approach being proposed this week — one that would completely strip commanders of their responsibilities, including the ability to launch courts-martial — falls short. Here’s why:
It would leave a huge number of victims behind. Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial. And many of those courts-martial resulted in convictions. That’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court martial. We’ve also found almost no cases in which a prosecutor wanted to pursue charges but was overruled by a commander. Stripping commanders of the ability to launch courts-martial seeks to solve a problem — commanders refusing to move cases forward — that we just don’t have.
As I said before, here, the former sex crimes prosecutor should be applauded for really learning about this issue. I can’t say I agree with all of her responses to this issue, see e.g. the nomination of LTG Helms here, but you have to give her credit for really trying to figure out the consequences of changes and not just proposing changes for political value.
Here is an opinion piece from the woman that a panel of members at Aviano AFB found was the victim of a sexual assault by LTC Wilkerson. The panel’s decision was set aside by the convening authority . . . and the rest is history.
Sen. McCaskill discusses her more modest proposal for military justice reform here:
McCaskill argued that because commanders would be stripped of the decision to prosecute in Gillibrand’s bill, the measure would fail to hold them accountable.
“We just had a fundamental policy difference on whether or not it was going to help victims more to hold the commander accountable or to allow them to walk away,” she said.
I’m a little late posting this, but last week Rep. Jackie Speier (D-CA14) threw her hat into the Article 32 reform ring. H.R. 3459, text available here, appears to be identical to the bill introduced by Sen. Boxer, which we covered here. This bill will be in competition in the House with the bill from Rep. Turner, covered here.
Also, this article from Politico is an interesting read on the political dimensions of military justice reform and how it plays into larger ideological and political battles.
As previously posted by “No Man,” Sen. Boxer introduced a bill to amend 10 U.S.C. 832 aka Article 32, UCMJ. The text of the bill is now available here. One thing the bill does have going for it is that it abandons any pretense of “reforming” the Article 32 investigation in its current form, and calls it what it is, or what it is proposed to be – a preliminary hearing.
The bill is similar in content to the one introduced in the house, covered previously here. The complaining witness can refuse to testify, the hearing is limited to a probable cause determination and recommended disposition, etc. However, there are a few unique provisions, including this one:
A judge advocate may conduct a preliminary hearing if the judge advocate has a grade equal to or higher than the grade of the trial counsel and, if the accused is represented by military counsel, the defense counsel who will represent the accused at the preliminary hearing.
I could see this posing a logistical problem, particularly at small bases and in light of the regionalization of some defense services. Also, and maybe I’m reading too much into this, but this provision seems to be related to Congress’ strange but persistent belief that rank structure and military hierarchy are somehow uniquely to blame for too few, in their opinion, sexual assault prosecutions.
Sen. Boxer and her co-sponsors are the latest to propose UCMJ changes in the wake of swverl high profitsle sexual assault cases. McClatchy coverage here.
On 28 October, Rep. Michael Turner (R-OH10) introduced a bill to amend Article 32, UCMJ. Among some of the major changes, the bill gets rid of the troublesome “reasonable grounds” non-burden of proof in favor of a probable cause requirement, mandates that the investigating officer be a judge advocate except in “exceptional cases,” defines the accused’s pre-investigation discovery rights, and eliminates the accused’s right to request a re-investigation.
Read more »
I just discovered this Federal Register Notice of a significant military justice event this Thursday and Friday.
A meeting of the Response Systems to Adult Sexual Assault Crimes Panel (“the Panel”) will be held November 7-8, 2013. The Public Session will begin at 8:30 a.m. and end at 5:00 p.m. on November 7, 2013, and will begin at 8:25 a.m. and end at 5:45 p.m. on November 8, 2013.
Location: U.S. District Court for the District of Columbia, 333 Constitution Avenue NW., Courtroom #20, 6th Floor, Washington, DC 20001.
The Panel has a website: http://responsesystemspanel.whs.mil/
The agenda for this week’s meeting:
November 7, 2013
8:30 a.m.-8:35 a.m. Comments from the Panel Chair
8:35 a.m.-9:30 a.m. Subcommittee Briefing
9:30 a.m.-10:30 a.m. Overview of DoD Victim Services and Sexual Assault Reporting Statistics Update
DoD SAPRO representatives
10:30 a.m.-12:00 p.m.Victim Service Programs
SAPR representatives from Army, Navy, Air Force, Marines, and Coast Guard
12:00 p.m.-12:30 p.m.Lunch
12:30 p.m.-2:30 p.m. Victim Service Provider Perspectives
Service victim advocate, sexual assault response coordinator, and victim witness liaison representatives
Civilian community victim advocates
2:30 p.m.-4:30 p.m. Advocacy Organization Perspectives
Military victim advocacy organizations
National crime victim and sexual assault organizations
4:30 p.m.-5:00 p.m. Comments from Public
November 8, 2013
8:25 a.m.-8:30 a.m. Comments from the Panel Chair
8:30 a.m.-10:00 a.m. Sexual Assault Survivor Perspectives
Survivors of sexual assault
10:00 a.m.-12:00 p.m. Services Special Victims’ Counsel Programs
Representatives from the Army, Navy, Air Force, Marines, and Coast Guard
12:00 p.m.-12:30 p.m. Lunch
12:30 p.m.-2:00 p.m.Civilian Perspectives on Victim Participation
Civilian sexual assault prosecutors
Civilian victim attorneys
2:00 p.m.-4:00 p.m.Defense Bar Perspectives
Defense representatives from the Army, Navy, Air Force, Marines, and Coast Guard
Civilian defense attorneys
4:00 p.m.-4:15 p.m.Comments from Public
4:15 p.m.-5:45 p.m.Panel Deliberations
This video is hard to watch compared to last week’s comments on Morning Joe from Sen. McCaskill. “Joe”‘s questions are at best mis-informed and Sen. Gillibrand’s responses are about the same. H/t KF
We’ve seen a fair amount of flak thrown Sen. McCaskill’s way for her position on sexual asault in the military. But, I have to say that her comments this AM on MSNBC’s Morning Joe, here (starting at 3:30 mark), were quite well informed. Whether you agree with them or not, it is hard to argue that she hasn’t educated herself on the issues and facts. She puts the 26,000 figure in context (during which time MSNBC puts up a graphic that mis-characterizes the 26,000 figure) and makes the case that removing the chain of command from the UCMJ process doesn’t address the real problem. I’ve heard those two sentiments somewhere before, here and here to link a few? H/t KF